Post-Conviction Proceedings

A judgment of conviction may seem like the end of a criminal case, but several post-conviction proceedings could shorten or even eliminate a sentence. Sometimes, defendants are left to their own devices for these proceedings. The constitutional right to counsel only applies to certain proceedings after a conviction.


This article describes the post-conviction relief process. Such processes allow a defendant to ask the court to modify or vacate a conviction or sentence. Then, it describes various post-conviction proceedings and when a defendant is entitled to an attorney.

Post-Conviction Relief

The criminal justice system provides for various methods of post-conviction relief. These methods allow those convicted of a criminal charge to challenge their criminal conviction or sentence. The methods available depend on the state in which you live. Post-conviction relief is available in both federal and state courts.

Defendants often challenge their criminal conviction or sentence due to a trial court's error. Or, they may argue that the government violated one of their constitutional rights. For example, they might argue the government failed to provide them with a speedy trial.

A defendant must file a petition for post-conviction relief. These might include a motion for a new trial or a motion to vacate a judgment.

The government may appoint an attorney to represent the defendant. The court will review the petition and decide whether to conduct an evidentiary hearing. The court will also determine whether the defendant can present new evidence at the hearing.

If the court rules in favor of the defendant, they will look to the petition and grant some or all of it, as appropriate. For example, they may shorten the defendant's sentence or release them entirely. The court may also determine whether a new trial is the most appropriate relief.

Post-Conviction Proceedings: When a Defendant Is Entitled to an Attorney

A defendant is entitled to court-appointed counsel for proceedings that affect their fundamental rights. This right comes from the Sixth Amendment to the U.S. Constitution. Post-conviction proceedings that affect a defendant's constitutional rights include the following:

  • Sentencing: In general, sentencing is the procedure in which the court decides the defendant's punishment. This is a critical stage of the prosecution, so the defendant is entitled to a defense attorney at the state's expense.
  • The First Appeal of Right: Some states give criminal defendants the right to a criminal appeal when a judge rules against them on certain motions during trial. In these states, a defendant is entitled to have an attorney on the appeal. The appellate court will review the trial court's transcript and determine whether to affirm or reverse the trial court. After this direct appeal, the defendant is typically no longer entitled to a state-appointed attorney.
  • Review of the Effectiveness of Defense Counsel: The Sixth Amendment gives criminal defendants the right to a competent attorney. If a defendant claims they experienced the ineffective assistance of counsel, the court will appoint a different attorney to help them with the review.

An appellate attorney reviews the transcripts of these proceedings to ensure the following, among other things:

If the appellate attorney determines that the court or your attorney erred at the district court level, they may do one of several things. First, they may file an appeal on your behalf. An appeal allows them to bring up these errors to the court of appeals. Second, they may file a post-conviction motion for appropriate relief.

Post-Conviction Proceedings: When a Defendant Is Not Entitled to an Attorney

Some post-conviction proceedings are not considered critical stages of the criminal case. As such, these proceedings don't entitle a defendant to an attorney at the state's expense. Defendants may hire an attorney at their expense for these steps. Alternatively, they may contact nonprofit or pro bono legal aid organizations for legal assistance. Proceedings that do not necessitate counsel include the following:

  • Discretionary Appeals and Petitions for the Supreme Court: Defendants in states that do not recognize the right to an appeal may still seek to have their case reviewed for errors. However, defendants usually must hire their own attorney for such appeals.
  • Habeas Corpus Proceedings: A defendant may file a writ of habeas corpus. Such a petition is a claim that their incarceration is unconstitutional. For this proceeding, a prisoner must hire their own attorney. Alternatively, they may represent themselves, also known as proceeding pro se.
  • Parole Hearings: In parole hearings, a panel of judges or other government appointees may decide to let a prisoner out on parole. They may also revoke parole or shorten it. Prisoners may have an attorney present at a parole hearing, but the Constitution does not guarantee one.
  • ClemencyPardon, or Commutation Proceedings: These proceedings can allow a convicted person's sentence to be shortened or erased entirely. Such proceedings do not carry a right to counsel because they are executive and not judicial processes.
  • Expungement: In expungement proceedings, a convicted person who served a sentence can get their record erased and civil rights restored. Convicted persons are not entitled to an attorney when pursuing expungement.

An experienced criminal defense attorney can ensure the government does not violate your rights. This is especially important regarding key issues like the admission of false confessions or inauthentic evidence.

Get Legal Help With Your Post-Conviction Proceedings

As you can see, you may not be entitled to an attorney for certain post-conviction proceedings. However, that just applies to a court-appointed attorney. You still have the option to consult with a well-qualified criminal defense attorney near you for help. An experienced attorney can provide you with legal advice regarding the following:

  • Defense and litigation strategy specific to your legal issues

You may have further questions about the post-conviction process or post-conviction remedies. If so, contact a criminal defense attorney near you.

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